to the seller, is raised or recognized in his be half. It is where the facts fall within the principle of exceptions of this sort that the reason of the maxim falls, and an implied warranty of the goods sold is recognized in favor of the buyer. When, then, the question is whether or not, in a given case, an implied warranty exists, it can only be determined by a full consideration of all the facts. The evidence shows that the plaintiff was a butcher, and that he used beef cattle for retail in his market; that he gave an order to the defendant for two carloads of "good beef cattle,' who accepted it, and selected and shipped the cattle to the place designated; that the plaintiff paid for the cattle before delivery by draft drawn on him by the defendant; that the plaintiff was not present to inspect the cattle, nor had any opportunity to examine them until their arrival; that the defendant knew what the business of plaintiff was, and the purpose for which he wanted good beef cattle; that the cattle were not good beef cattle, or beef cattle, but only stock cattle, and not fit for the purpose intended; that as soon as plaintiff saw the cattle he notified the defendant of their not being the quality and kind of cattle he ordered, and unfit for his business purposes, but at the same time made a proposition as to part of them, which the defendant refused to accept, claim. ing that the cattle shipped fully complied with the order. The relation which the defendant as seller, and the plaintiff as buyer, bear to these acts, when analyzed, is that the defendant undertook to supply cattle of the description ordered, knowing the particular purpose for which they were to be used, with full opportunity of inspecting them, and discovering their defects, or of ascertaining that they were not beef cattle, and fit for the particular purpose for which they were ordered; that the plaintiff was not present to inspect them, nor did he know, or have any opportunity of knowing, their defects, or ascertaining that they were not beef cattle, and not fit for the purpose for which they were intended, until after the cattle were delivered and paid for. In applying the law to this state of facts, the trial court asserted, in effect, by its charge, that there was an implied warranty on the part of the defendant that the cattle should be of the quality or answer the description ordered, and when so ordered, for a particular purpose, known to the defendant, that it, by undertaking to furnish the cattle, impliedly undertook that they should be reasonably fit for the purpose for which they were intended. The principle is stated that, where goods are sold by description or particular designation, there is always an implied condition that the article or goods delivered shall correspond strictly with that description or designation. This is regarded by some of the authorities, especially in the United States, as an implied warranty that the article sold is of that description, and by others as a condition precedent. But the facts in this case obviate the consideration of that aspect of the question. The defendant had received the full consideration for the cattle and consequently the contract had become in part executed when the cattle were delivered, and repudiation by the plaintiff of the contract, for non-compliance with its terms in not furnishing good beef cattle, had become impossible. The language of Depue, J., in Wolcott v. Mount, 36 N. J. L. 262, 13 Am. Rep. 438, goes to this point: "The right to repudiate the purchase," he says, "for non-conformity of the article delivered to the description under which it was sold, is universally conceded. That right is founded on the engagement of the vendor by such description, that the article delivered shall correspond with the description. The obligation rests upon the contract. Substantially the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy by rescission than he would have on a simple warranty; but when his situation has been changed, and the remedy by repudiation has become impossible, no reason supported by principle can be adduced why he should not have upon his contract such redress as is practical under the circumstances. In that situation of affairs, the only available means of redress is a legal action for damages. Whether the action shall be technically considered an action on a warranty or an action for the nonperformance of a contract is entirely immaterial." Reversing the order, he further says: "But in a number of instances it has been held that statements descriptive of the subject matter, if intended as a substantive part of the contract, will be regarded in the first instance as conditions, on the failure of which the other party may repudiate in toto, by a refusal to accept or return the article, if that be practicable; or if a part of the consideration has been received, and rescission has become impossible, such representations change their character as conditions, and become warranties, for the breach of which an action will lie to recover damages." As has been suggested, strictly speaking, the conditions do not become warranties, but, the sale having become consummated, the same facts which before constituted conditions precedent now constitute warranties. That is our case. The description of the article sold ceases to be a condition, but becomes a warranty, rendering the authorities holding the doctrine that the sale of a chattel, as being of a particular description, implies a warranty that the article is of that description, in point, in support of the principle asserted in the instructions. In Winsor v. Lombard, 18 Pick. 60, Shaw, Ch. J., said: "Every person who sells goods of a certain denomination or description undertakes, as a part of his contract, that the thing delivered corresponds to the description, and is in fact an article of the kind, species, and quality thus expressed in the contract of sale; the rule being that, upon a sale of goods by a written memorandum or bill of parcels, the vendor undertakes, in the nature of warranting, that the thing sold and delivered is that which is described. This rule applies whether the description be more or less particular and exact in enumerating the qualities of the goods sold," In White v. Miller, 71 N. Y. 129, 27 Am. Rep. 13, Andrews, J.. said: "The doctrine that the bargain and sale of a chattel of a particular description imports a contract or warranty that the article sold is of that description, is sus tained by a great mass of authority." So in Wolcott v. Mount, supra, Depue, J., said: "The doctrine that on the sale of a chattel as being of a particular kind or description, a contract is implied that the article is of that kind or description, is also sustained by the following English cases: Powell v. Horton, 2 Bing. N. C. 668; Barr v. Gibson, 3 Mees. & W. 390; Chanter v. Hopkins, 4 Mees. & W. 399; Nichol v. Godts, 10 Exch. 191; Gompertz v. Bartlett, 2 El. & Bl. 849." In Foos v. Sabin, 84 Ill. 564, the contract of sale was for "fat cattle," to be shipped for delivery at a future day; and the court held, where a contract is to sell "fat cattle," to be shipped for the market at a future day, he will be bound to pasture them so that they will, atthe time agreed on for delivery, be in a suitable condition for sale as "fat cattle" in the market. While, therefore, in the sale of an existing chattel, the law does not, in the absence of fraud, imply a warranty of the quality or condition, yet where the sale is of a chattel, as being of a particular description, it does imply a warranty that the article sold is of that description. See also Hogins v. Plympton, 11 Pick. 97; Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Hyatt v. Boyle, 5 Gill & J. 110, 25 Am. Dec. 276; Bunnel v. Whitlaw, 14 U. C. Q. B. 241. There is however, where an article is sold by description, besides the condition or warranty, as it may be classed, an implied warranty, that the article sold shall be marketable under the terms of the description, or reasonably fit for the purpose for which it was intended. "In some contracts," said Brett, L. J. "the undertaking of the seller is said to be only that the article shall be merchantable; in others that it shall be reasonably fit for the purpose to which it is to be applied. In all, it seems to us, it is either assumed or expressly stated that the fundamental undertaking is that the article offered or delivered shall answer the description of it contained in the contract. That rule comprises all others. They are adaptions of it to particular kinds of contracts of purchase and sale." Randall v. Newson, L. R. 2 Q. B. Div. 102. In Jones v. Just, L. R. 3 Q. B. 197, a leading case, it was decided under a contract to supply goods of a specified description, which the buyer has no opportunity of inspecting, the goods must not only in fact answer the specific description, but must be salable or merchantable under that description. "If a man," said Best, Ch. J., in Jones v. Bright, 5 Bing. 533, "sells an article, he thereby warrants that it is merchantable; that is, fit for some purpose. If he sells it for a particular purpose, he thereby warrants it fit for that purpose." If the contract is to supply a certain kind and quality of chattels for a particular purpose known to the seller, which the buyer has no opportunity to examine before delivery, there is usually an implied warranty that the chattels supplied shall be reasonably fit for the special purpose intended by the buyer. 2 Benjamin, Sales, & 645. "Where the purchas er," said Staples, J., "does not designate any specific article, but orders goods of a par ticular quality, or for a particular purpose, and that purpose is known to the seller, the presumption is the purchaser relies upon the judgment of the seller, and the latter, by un. dertaking to furnish the goods, impliedly undertakes they shall be reasonably fit for the purpose for which they were intended." Gerst v. Jones, 32 Gratt. 521, 34 Am. Rep. 773. Likewise in Best v. Flint, 58 Vt. 543, 2 New Eng. Rep. 604, 56 Am. Rep. 570, it was held that there is an implied warranty in the sale of hogs purchased for the market that they are fit for that purpose, when the vendee, having no opportunity of inspection, trusts to the judgment of the vendor to select them, and both parties understand for what they are intended. See also Beals v. Olmstead, 24 Vt. 114, 58 Am. Dec. 150; Street v. Chapman, 29 Ind. 142; Howard v. Hoey, 23 Wend. 350, 35 Am. Dec. 572; Hanger v. Evins, 38 Ark. 334; Gammell v. Gunby, 52 Ga. 504. While this rule applies with particular force where the vendors are the manufacturers, it is not limited to them, but is extended to cases where one merchant or dealer contracts to supply goods of a specific description to another merchant or dealer. Jones v. Just, supra; Lewis v. Rountree, 78 N. C. 323; Hanks v. McKee, 2 Litt. 227, 13 Am. Dec. 265; Ketchum v. Wells, 19 Wis. 34; Whitaker v. McCormick, 6 Mo. App. 114; Flint v. Lyon, 4 Cal. 17; Chicago Packing & P. Co. v. Tilton, 87 Ill. 547; Messenger v. Pratt, 3 Lans. 234. Nor is it material whether the goods or chattels are to be made or supplied to order. There is always an implied warranty that they are reasonably fit or suitable for the particular use intended by the purchaser, provided the use or purpose to which they are to be applied is known to the seller when the order was given. Where a buyer," says Cockburn, J., "buys a specific article, the maxim caveat emptor applies; but where the buyer orders goods which shall be applicable for the purpose for which they are ordered, there is an implied warranty that they shall be reasonably fit for that purpose." Bigge v. Parkinson, 7 Hurlst. & N. *955. So that when a dealer undertakes by contract to supply goods or chattels in which he deals that are to be used, or are intended, for a particular purpose, and the purchaser necessarily, under the circumstances, trusts to his judgment, there is an implied warranty that they shall be reasonably fit for the use or purpose to which they are to be applied. The plaintiff had no opportunity to inspect the cattle, but the defendant undertook to select and supply them. Knowing the purpose for which he wanted them, and that no other than beef cattle would be fit for that purpose. The defendant could not have undertaken to supply the cattle on any other supposition than that they were salable as beef cattle, and fit for the purpose to which they were to be applied. Necessarily, then, the defendant had knowledge and information in the premises, and the plaintiff must have relied upon his judgment to fill the order, as he clearly could exercise no judgment of his own. As Mr. Justice Mellor said: "This appears to us to be at the root of the doctrine of implied warranty, and in this view it makes no difference whether the sale is of goods specially appropriated to a particular contract, or to goods: answering to a particular description." Jones: v. Just, supra. We do not think, upon the facts as disclosed by this record, there was any error in the instructions excepted to. This re sult renders it necessary to consider but one | fectly worthless." So that it is clear that he other objection, namely, that the plaintiff must did not think he had received such cattle as he be taken to have accepted one half of the cattle had ordered, and as were fit for the purpose as good beef cattle, and fit for the purpose for intended; but as he had paid for them as good which he wanted them, as disclosed by his beef cattle, and was out of his money, he was letter upon the delivery of the cattle, making in a position to compromise, and betrayed a a proposition to keep half of them, if the de- disposition by his proposition to adjust the fendant would furnish another car-load of good matter without further trouble or difficulty; cattle. His order, and the facts as disclosed. but, however that may be, the defendant deindicate that the plaintiff needed beef cattle clined to entertain or consider his proposition, quite badly for the supply of his market, as he claiming that the cattle were such as complied states in his order that he had only "two head with the order, and the defendant cannot avail of cattle left." But in his letter making this itself of its benefits now, as its conduct relegated proposition he also says and charges that the the matter to its original status, and necessitated defendant had taken "his hard money for this suit for the adjustment of their differences. property that, for my use, you know is per- We think that the judgment must be affirmed. GEORGIA SUPREME COURT. were two interviews, at the first of which two of the witnesses (together with another who was not afterwards present) subscribed, and at the second the testator and the third witness. But is this difference in the facts of the two cases material? The doctrine distinctly held by the court in ruling Duffie v. Corridon, is that, until the testator signs, there is nothing to attest; the signature of the testator being the principal, if not the only, matter to which the attestation contemplated by law applies. It is obvious that, if this be the true reason why the witnesses cannot subscribe their names until after the testator has signed his, it is of no consequence, when the form of attesting an unsigned will is gone through with, whether on the same occasion of the testator's added signature or on a previous occasion. In either case, the attesting act would be performed when there was no signature in existence to be attested, and therefore no subject matter to which the act could apply. To witness a future event is equally impossible, whether it occur the next moment or the next week. We rule the present case on the authority of the prior one above cited; being satisfied, after careful examination, that to abide by the principle of that decision we must regard the order of time in which the respective signatures occur, rather than the interval of time by which they are separated. The manifest teaching of Duffie v. Corridon is that the testator must sign first. That teaching is not followed, but directly violated, when the witnesses sign first. Judgment affirmed. Lumpkin, J., not presiding. NOTE.-Signature of witnesses to will before texta-1 B. Mon. 117; Vaughan v. Burford, 3 Bradf. 78; tor signs it. The signature of attesting witnesses to a will before it is signed by the testator does not constitute a valid attestation. Jackson v. Jackson, 39 N. Y. 153; Sisters of Charity v. Kelly, 67 N. Y. 409; Hindmarsh v. Carlton, 8 H. L. Cus. 160: Shaw v. Neville, 1 Jur. N. S. 408; Hudson v. Parker, 1 Robb. Eccl. 39; Cooper v. Bockett, 3 Curt. Eccl. 659: Re Olding, 2 Curt. Eccl. 865; Re Hoskins, 32 L. J. N. S. 158; Pearson v. Pearson, L. R. 2 Prob. & Div. 451; McMulkins' Case, 6 Dem. 347; Fischer v. Popham, L. R. 3 Prob. & Div. 246; Reed v. Watson, 27 Ind. 443; Ragland v. Huntingdon, 23 N. C. 563. On the contrary, some cases have held that it is not material whether the testator or the witnesses sign first if all sign during one continuous transaction. Sechrest v. Edwards, 4 Met. (Ky.) 163; Rosser v. Franklin, 6 Gratt. 1, 52 Am. Dec. 97; Swift v. Wiley, overruled by later New York cases above cited. And in Pennsylvania where subscribing witnesses are not necessary an attestation before the signature of the testator is sufficient. Miller v. McNeill, 35 Pa. 217, 78 Am. Dec. 333. A subsequent acknowledgment or adoption by an attesting witness of his signature cannot be held sufficient or equivalent to attestation at that time where his signature was before that of the testator. Hindmarsh v. Carlton, 8 H. L. Cas. 160; Re Byrd, 3 Curt. Eccl. 117; Re Cox's Will, 46 N. C. 321; Chase v. Kittredge, 11 Allen, 49, 87 Am. Dec. 687. Contra, Sturdivant v. Birchett, 10 Gratt. 67; Pollock v. Glassell, 2 Gratt. 439; Swift v. Wiley, 1 B. Mon. 117; O'Brien v. Galagher, 25 Conn. 229. Especially if they did not sign in the testator's MICHIGAN SUPREME COURT. William C. WILLIAMS et al., Appts., C. Jacob S. FARRAND et al. (........Mich.... .) name so closely imitating that of the original as to mislead purchasers and direct trade from the original firm will be enjoined. High, Inj. S 1345; Banks v. Gibson, 34 Beav. 566; Bates, Partn. § 663; Hall v. Barrows, 10 Jur. N. S. 55; Chissum v. Deus, 5 Russ. 30; 1. Retiring partners who engage again Pearson v. Pearson, L. R. 27 Ch. Div. 145; Shipwright v. Clements, 19 Week, Rep. 599; transferring their interest in the old Kellogg v. Totten, 16 Abb. Pr. 35; Hail v. Hall. business to the other partners, whether the good-supra; Merry v. Hoopes, 111 N. Y. 415; Ilegeman v. Cutter, 8 Daly, 1; McGowan Pump & Mach. Co. v. McGowan, 22 Ohio St. 370. in the same kind of business after will be included in the transfer or not, have the right not only to advertise their new business, but also to solicit the customers of the old firm personally unless they have bound themselves not to do so by their contract. 2. The right of retiring partners to engage again in business under their own names or any collocation of their own names after selling their interest in the firm is not restricted except by their own agreement, even if the collocation of their names which they adopt as the name of a new firm which they organize is similar or identical with the old firm name where there is no attempt at deception. But they have no right to represent their busi ness as a continuation of that of the old firm. (Champlin,Ch. J., dissents.) (November 20, 1891.) APPEAL by complainants from a decree of the Circuit Court of Wayne County in favor of respondents in a suit brought to enjoin the use of a certain trade-name from interfering with certain trade-marks, and generally from interfering with the good-will of complainants' business. Affirmed. The facts are fully stated in the opinion. Messrs. Bowen, Douglas & Whiting, for appellants: We can see there is a marked distinction between a sale by partners to a third party and a sale between retiring and continuing partners, in which latter case it is known and expected that the vendees shall continue the uninterrupted going business. Ayer v. Rushton, 7 Daly, 9; Caswell v. Davis, 58 N. Y. 223, 17 Am. Rep. 233; Congress & E. Spring Co. v. High Rock C. Spring Co. 45 N. Y. 302, 6 Am. Rep. 82; Sohier v. Johnson, 111 Mass. 238; Horie v. Chaney, 3 New Eng. Rep. 709, 143 Mass. 592, 58 Am. Rep. 149; Parsons, Partn. 409; Caswell v. Hazard, 121 N. Y. 484; Smith v. Walker, 57 Mich.1456; Chittenden v. Witbeck, 50 Mich. 401; Grow v. Seligman, 47 Mich. 607, 41 Am. Rep. 737; Myers v. Kalamazoo Buggy Co. 54 Mich. 215, 52 Am. Rep. 811. As the testimony in this case is conclusive that the two names of Farrand, Williams & Co. and Farrand, Williams & Clark, with the combination in conjunction of the distinctive words "Farrand" and "Williams" are so similar as to confuse the mind of the public, and as the business methods of defendants are such as to cause such a confusion of business as to lead to loss and impairment of the property sold, the defendants should be enjoined from this use as prayed for in the bill. The real value of the good-will depends in Lindley, Partn. 439; Kerr, Inj. § 167; Parsome cases entirely, and in all very much, on the sons, Partn. 409; Bates, Partn. 63, and cases absence of competition on the part of those by cited: Hookham v. Pottage, L. R. 8 Ch. App. whom the business has been previously car-94; Glenny v. Smith, 2 Drew & S. 476; Lee v. ried on. Bates, Partn. 659, 670; Lindley, Partn. $439; Story, Partn. § 100; Wedderburn v. Wedderburn, 22 Beav. 84. The good-will of a partnership is a valuable asset. Churton v. Douglas, Johns. V. C. (Eng.) 174; Banks v. Gibson, 11 Jur. 680; Wedderburn v. Wedderburn, supra; High, Inj. SS 30, 1345; Kerr, Inj. 168; Bates, Partn. § 663, and cases. Where a partner sells out all his share of the stock in a going concern, the presumption is that he means to include whatever is included in the word "good-will," though the latter be not specifically mentioned. Churton v. Douglas, supra; Bury v. Bedford, 33 L. J. Ch. 465; Hall v. Hall, 20 Beav. 139; Browne, Trade-marks, § 359, 360, 23 Am. L. Reg. p. 649. The appropriation by one partner of a firm NOTE.-The exhaustive discussion and citation of authorities in the opinion of the court and in the dissenting opinion in this so fully present the authorities on each side that any annotation would be largely a reproduction of them. Haley, L. R. 5 Ch. 155; Cruttwell v. Lye, 17 Ves. Jr. 335; Levy v. Walker, L. R. 10 Ch. Div. 438; Taylor v. Taylor, L. R. 20 Eq. 297; Churton v. Douglas, 7 Johns. V. C. (Eng.) 174; Fullwood v. Fullwood, L. R. 9 Ch. Div. 176: Croft v. Day, 7 Beav. 84; Holmes, B. & H. v. Holmes, B. & A. Mfg. Co. 37 Conn. 279; Hegeman v. Cutter, 8 Daly, 1; Cottrell v. Babcock Print. Press Mfg. Co. 2 New Eng. Rep. 916, 54 Conn. 122; Bininger v. Clark, 60 Barb. 113: Myers v. Kalamazoo Buggy Co. supra: Hall's App. 60 Pa. 462, 100 Am. Dec. 584; Ginesi v. Cooper, L. R. 14 Ch. Div. 596; Collyer, Partn. S$ 162, 168; Shaver v. Shaver, 54 Iowa, 208, 37 Am. Rep. 594. It is not necessary that a name should be copied with fullest accuracy, exactly. The rule is that if an imitation is calculated to deceive the public and may be taken for the original its use will be enjoined. Gage v. Publishing Co. 11 Ont. App. 481; Iowa Seed Co. v. Dorr, 70 Iowa, 481, 59 Am. Rep. 446; McLean v. Fleming, 96 U. S. 245, 24 L. ed. 828; Meneely v. Meneely, 62 N. Y. 431, 20 Am. Rep. 489; 11 Cent. L. J. 25 et seq.; 23 Am. L. J. 72. Mr. Ashley Pond, with Mr. William | prevent or estop them from doing business unH. Wells, also for appellants. der their own names. Messrs. F. H. Canfield and Henry H. Swan, with Messrs. Moore & Canfield, for appellees: Every man has a legal right to engage in any lawful business in his own name, or in connection with others, although by so doing he may interfere with the business of others previously established and carried on under the same name. Turton v. Turton, L. R. 42 Ch. Div. 128; Burgess v. Burgess, 3 DeG. M. & G. 896; Me neely v. Meneely, 62 N. Y. 427, 20 Am. Rep. 489; Russia Cement Co. v. Le Page, 6 New Eng. Rep. 577, 147 Mass. 206; Goodyear's India Rubber Glove Mfg. Co. v. Goodyear Rubber Co. 128 U. S. 598, 32 L. ed. 535; Lathrop v. Lathrop, 47 How. Pr. 532; Decker v. Decker, 52 How. Pr. 218; Rogers v. Taintor, 97 Mass. 291; Gilman v. Hunnewell, 122 Mass. 148. The fact that the parties were once co-partners is in no wise material. Upon dissolution of a partnership each partner may re-engage in the same business and compete with the others. After dissolution, in the absence of an express agreement, neither can carry on business under the old firm name, unless the firm name was identical with the name of the partner. The retiring members of a firm may not only engage in the same business in the same locality, but they may advertise their business and solicit the customers of the old firm, and to the same extent that other business competitors may do. They may personally solicit the customers of the old firm. Labouchere v. Dawson, L. R. 13 Eq. 322, 1 Moak, Eng. Rep. 711; Pearson v. Pearson, L. R. 27 Ch. Div. 145. See also Hoe v. Searing, 19 How. Pr. 14, 10 Abb. Pr. 264; 1 Collyer, Partn. 236, 239; Peterson v. Humphrey, 4 Abb. Pr. 394; Reeves v. Denicke, 12 Abb. Pr. N. S. 92; McGowan Pump & Mach. Co. v. McGowan, 22 Ohio St. 370; Lindley, Partn. 363, 437; 30 Cent. L. J. 157, article Good-will; Bates, Partn. § 585, 586; Heath v. Sansom, 4 Barn. & Ad. 172; 1 Parsons, Cont. 197; Parsons, Partn. 400; Cochran v. Perry, 8 Watts & S. 262; Edens v. Williams, 36 Ill. 252; Rogers v. Nichols, 20 Tex. 719; Collyer, Partn. § 101; Fourth Nat. Bank of N. Y. v. New Orleans & C. R. Co. 78 U. S. 11 Wall. 624, 20 L. ed. 82; Carroll v. Evans, 27 Tex. 262; Parkhurst v. Kinsman, 1 Blatchf. 488; Horton's App. 13 Pa. 67; Clark v. Wilson, 19 Pa. 414; Poicer v. Kirk, 1 Pittsb. 510. To entitle the complainants in this case to the relief prayed for in the bill, and to the injunction restraining defendants from doing business under their firm name of Farrand, Williams & Clark, it is necessary that they should show some contract between them and the defendants by which the latter have parted with the right to use such firm name. The agreement upon which the complainants rely, being with Mr. Sheley personally, was not assignable. Davies v. Davies, L. R. 36 Ch. Div. 359; Howland v. Roosevelt, 5 N. Y. Supp. 75. The bill of sale is not sufficient to convey the defendants' interest in the good-will of the old firm of Farrand, Williams & Co., nor to Chittenden v. Witbeck, 50 Mich. 420; Myers v. Kalamazoo Buggy Co. 54 Mich. 222, 52 Am. Rep. 811; Story, Partn. § 99; Parsons, Partn. 409–425; Pearson v. Pearson, L. R. 27 Ch. Div. 145; Cottrell v. Babcock Print. Press Mfg. Co. 2 New Eng. Rep. 916, 54 Conn. 122; Lathrop v. Lathrop, 47 How. Pr. 532; Reeves v. Denicke, 12 Abb. Pr. N. S. 92; Hazard v. Caswell, 93 N. Y. 259, 45 Am. Rep. 198; Caswell v. Hazard, 121 N. Y. 484; Huwer v. Dannenhoffer, 82 N. Y. 499; Morgan v. Shuyler, 79 N. Y. 490, 35 Am. Rep. 543; Hallett v. Cumston, 110 Mass. 29. A court of equity will not restrain a person from doing business in his own name, at the instance of another who is using a different name. | lowa Seed Co. v. Dorr, 70 Iowa, 481, 59 Am. Rep. 446; Bassett v. Percival, 5 Allen, 345; Rice v. Angell, 73 Tex. 350. See also Smith v. Gibbs, 44 Ñ. H. 335. If Mr. Sheley had supposed that he was to receive, or that the complainants were to receive, the defendants' interest in the good-will as a consideration for the $20,000, he certainly would never have directed Mr. Stevens to scratch out from the bill of sale the clause relating to the good-will. Philpot v. Gruninger, 81 U. S. 14 Wall. 577, 20 L. ed. 744; Ellis v. Clark, 110 Mass. 389, 14 Am. Rep. 609; Wald's Pollock, Cont. 9; Oates v. First Nat. Bank of Montgomery, 100 U. S. 239, 25 L. ed. 580; Anthony v. Boyd, 3 New Eng. Rep. 867, 15 R. I. 495; Irwin v. Wilson, 12 West. Rep. 873, 45 Ohio St. 426. The only ground upon which a court of equity has jurisdiction to interfere in such cases is to prevent a fraudulent invasion of an established business by one who is piratically seeking to represent such business to be his own. Lery v. Walker, L. R. 10 Ch. Div. 436, 27 Moak, Eng. Rep. 6; Goodyear India Rubber Glore Mfg. Co. v. Goodyear Rubber Co. 128 U. S. 598, 32 L. ed. 535; William Rogers Mfg. Co. v. Simpson, 4 New Eng. Rep. 75, 54 Conn. 527; Burgess v. Burgess, 3 DeG. M. & G. 896; Massam v. Thorley's Cattle Food Co. L. R. 14 Ch. Div. 748; England v. New York Pub. Co. 8 Daly, 375; Singer Mfg. Co. v. Wilson, L. R. 2 Ch. Div. 434; Singer Mfg. Co. v. Loog, L. R. 8 App. Cas. 15. Complainants must show affirmatively an injury wrongfully done by the defendants, and damage resulting from such injury. Harkinson's App. 78 Pa. 196, 21 Am. Rep. 9; Bonaparte v. Camden & A. R. Co. 1 Baldw. C. C. 218; Richards's App. 57 Pa. 105; Butler v. Burleson, 16 Vt. 176; Richardson & B. Co. v. Richardson & M. Co. 8 N. Y. Supp. 52. See also High, Inj. § 9, 10, 720, 743; Story, Eq. Jur. § 9596. McGrath, J., delivered the opinion of the court: Complainants and defendants had been for some years engaged as wholesale druggists on Larned Street east, in the city of Detroit, as copartners, under the name and style of Farrand, Williams & Co. There were no articles of copartnership, and no term fixed for which the partnership was to continue. Prior to the |